Shortly after President Obama nominated Sonia Sotomayor to a lifetime appointment to the Supreme Court, we heard Sotomayor's now famous words: The sentiment struck me as racist."
Is judicial impartiality no longer a quality we can and should demand from our Supreme Court Justices? President Obama apparently thinks so. Here is how President Obama explained his criteria for appointing judges earlier this year:
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old - and that's the criterion by which I'll be selecting my judges."
With these words, President Obama is cleverly inviting his critics to come out swinging against empathy for the less fortunate among us. Hopefully Americans are smarter than this.
We understand that the job of a justice is to enforce the law, not the rule of empathy. And we understand that when a judge substitutes his or her personal experiences for the law, the law becomes what he or she wants it to be, not what the people, through their elected representatives, have decided it should be.
Here is what Sotomayor told a Duke University Law School audience in 2005.
"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is - Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. (laughter) Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. (laughter) Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."
Judge Sotomayor, by her own words, believes the judge's bench is "where policy is made." What kind of law can we expect her to make as a Supreme Court justice?
The Berkeley Law School speech in which judge Sotomayor made the comments - that a "wise Latina" would make a better judge than a white male - has been widely cited. The White House is now claiming that critics are taking Judge Sotomayor's comments in that speech out of context. Respected legal scholars who have concluded that the speech as a whole isn't as damaging as the judge's "wise Latina" comment. However I contend it is worse.
Here are some excerpts from the speech.
"I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that."
"Whether born from experience or inherent psychological or cultural differences... our gender and national origins may and will make a difference in our judging."
"Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases .... I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
The central principle of American justice - and perhaps the single, great idea of America - is equal justice for 'all' before the law. This idea is expressed in the words "all men (and today we would say all men and women) are created equal." It means that Americans stand before the law, not as members of groups, but as individuals. "Equal justice under law" is in fact chiseled in stone on the front of the Supreme Court building and for good reason.
When a judge disregards the rule of law and applies a different standard to certain groups, or, as the President would say, shows "empathy," he or she violates this central American principle.
When a judge views Americans as members of groups and not individuals, one group's "empathy" becomes another group's injustice. And this is apparent in three separate cases where in the past the Supreme Court has over overturned Sotomayor's rulings.
Nowhere is the injustice that results from judging Americans as Sotomayor's ruling in the case involving Frank Ricci, a New Haven, Conn. firefighter.
Frank Ricci and 16 other white firefighters including one Hispanic firefighter sued the city, claiming they were denied promotions on the basis of their race. A district judge dismissed the case, and a three- judge panel of the Second Circuit Court of Appeals affirmed the dismissal. One of those judges was Judge Sotomayor. The Supreme Court is currently hearing the Ricci case, and a ruling is expected next month, likely in the midst of hearings on judge Sotomayor's nomination. Legal authority has predicted this ruling will be over turned also. But however the high court rules, this is a moment for America to have a full, honest and open debate, not just about the impartiality of our judges, but about equal justice before the law for Americans like Ricci.
On the high court, Judge Sotomayor will not have to worry about a higher court overturning her rulings. As a Supreme Court Justice, she will do the overturning.
Has President Obama nominated a conventionally liberal judge to a lifetime tenure on our highest court?
Or a radical liberal activist who will cast aside the rule of law in favor of the narrow, divisive politics of race and gender identity?